Significance of Documentation!

Documentation can be considered as the most important aspect while a visa is being obtained. Many a times, an applicant fails to realize that it is because of the insufficient documentation which might lead to his visa denial. This issue has been again brought to light with the following case judgment.

significance-of-documentation

In a recent federal court of Canada judgment – Sushil Malik Versus Minister of Citizenship and Immigration Canada – it became clear that an applicant must fulfill all documentation requirements, especially when there is a clear pre-advise from the department.

If he does not do so, the concerned High Commission or the Visa official is under full discretion to refuse his visa application based on available information and the submitted documents. A reconsideration request may be made, but then the visa officer may or may not accept the applicant’s request. The court may not be able to direct the same.

Case Background

The applicant had filed an application for permanent residence under the Federal Skilled Migrants category in October 2003 in New Delhi, India.  During the time of processing which was in May 2008, a notice was sent to the candidate requiring him to update information, documents and forms related to his application. Thus, he had to submit all the relevant information which also included relevant documentation. A due list of all the documents was sent to the applicant in time. The list clearly advised the key document requirements that were required to be submitted in support of claim of 5 points against his blood relation being in Canada. The applicant submitted documents by August 2008.

The application was then reviewed by the visa office in November 2008. Post evaluation, the applicant was only granted 65 points which were not enough to qualify for a visa. The minimum points required to be scored were 67 points. No points were granted to the applicant for family relationships residing in Canada. Hence, a refusal notification was sent to the applicant regarding the same in March 2009.

However, the applicant has a brother who is a Canadian citizen. Although, the documentation provided for this was not enough. An IRPA letter which was requested of the applicant to submit was missing in the submitted documentation. Only a declaration was present in the documentation which was not considered enough. This led to the lack of points that were necessary to qualify.

The letter from high commission clearly advised that an affidavit in support of blood relationship is not considered as a conclusive document.  To earn credits under this adaptability factor, the applicant must submit other supporting documents. On refusal, he submitted other documents as well and requested reconsideration on the grounds of fairness.

Post Refusal

Post refusal of the visa and after no response to the emails sent by the applicant, he filed for leave and a judicial review in April 2009. The hearing for this case was held in November 2009.

Based on the issues raised by the applicant, the respondent has cleared on the basis of the following:

Firstly, the applicant had the benefit of another 5 points under the relatives residing in Canada which he could not avail. However, the relevant documentation was missing. Regarding this, the applicant was informed in prior with specific amount of time given to submit the documentation.

Based on affidavit, the visa officer could not have established the relationship as per Laws. Since the documents were missing; a decision had to be taken based on the facts presented to him under other selection factors.

Secondly, the visa officer is under full jurisdiction to refuse any case, if it meant only judging the application on the basis of a declaration submitted by the applicant’s brother (in this case). He has to inform the applicant regarding the same before his case is closed, giving him time to respond. This was done duly done by the concerned official.

Thirdly, with the new documentation being provided by the applicant, the whole case would now be looked upon differently. But since the applicant was informed well in advance that only a declaration would not suffice, the visa officer is under full authority to refuse reconsideration of the application.

With all the three facts stated above, it is but obvious that the applicant was treated with respects to the law, based on the information provided by him. Thus, in the final judgment by the Federal Court, a judicial review was denied to the applicant.

The above is one of the many instances where the applicant has clearly not understood and has misread the procedure. Submitting the right documentation at all times is very essential to ensure scoring of enough points and for the application to be approved.

Additionally, the following must also be noted at all times:

  • An applicant is under the right to only request for a reconsideration of his application. Under any circumstance, he cannot demand for it. It is for the visa officer to decide whether or not to accept his request for reconsideration. The court may not be able to direct the visa officer to reconsider the refusal request in all cases.
  • For all the facts presented, he must submit the relevant documentation as mentioned and instructed by the High Commission.
  • Incase the applicant has appealed for a judicial review in the Federal Court, the court can only request for a fresh evaluation. However, the discretion lies with the concerned visa officer.
  • Lastly, a review could only be conducted if there has been a breach of law or under similar instances.

Therefore, it is of utmost importance not to take the visa officials for granted. They will always follow the law book. It is the applicant who would be at loses here.

If this applicant had consulted a good Immigration and visa adviser on his side, he would have known of the possible negative outcomes if his application has been rejected.

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